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Tuesday, January 12, 2010

John Yoo on The Daily Show (transcript)

Last night on Comedy Central's The Daily Show with Jon Stewart, Jon's guest was John Yoo, the Bush Administration lawyer who wrote one of the key documents asserting the Administration's legal authority to employ so-called "Enhanced Interrogation Techniques" on prisoners designated as unlawful enemy combatants. In colloquial terms, "The Torture Memo." Yoo asserted that Presidential power, when exercised in his or her role as Commander in Chief, is almost limitless, unbound by Congress, the Courts, treaties, or even the Constitution itself. He further claimed that virtually any maltreatment short of major organ failure could pass the legal test of not being "torture" under applicable law. The interview was lengthy, just over 26 minutes in total, so it was edited for the telecast; however, the entire unedited interview is available on TheDailyShow.com, and a full transcript of the entire interview follows, along with embedded video, below the fold.

TRANSCRIPT

Jon Stewart: My guest tonight is a law professor at UC Berkeley; from 2001 to 2003, he was Deputy Assistant Attorney General in the Department of Justice. His new book is called Crisis and Command: The History of Executive Power from George Washington to George W. Bush. Please welcome to the program John Yoo. Please, sir! [handshake] Nice to see you. Please come and sit.

Uh — there's one thing I've learned from preparing for this interview: I am not a Constitutional lawyer. So much of this is — I don't want to say gobbledygook, but for you, you are infamous. Do you feel that? Do you feel that the name John Yoo, people have impassioned feelings about you without really knowing you? Do you sense that? Do you think it's unfair?

John Yoo: They, I mean, the same thing must happen to you. People have impassioned feelings about you. When I went on this show, my students started e-mailing me, trying to find out how tall you were, how much you weigh, how good-looking you were.

Stewart: The questions, though, are somewhat different than vital statistics. Not so much horoscope stuff. How did you find yourself here? By your own account, by all accounts, you were not high up in the Department of Justice. Where were you — what was your position?

Yoo: I was the Deputy Assistant Attorney General, which is someone who works for the Attorney General, and then the Deputy Attorney General, and then the Associate Attorney General, and then the Assistant Attorney General, and then there was me. But, on 9/11, if you remember, this was going to be an administration that was going to be about domestic problems. They campaigned on not doing any "nation-building," the 82nd Airborne wasn't supposed to escort kids to kindergarten.

Stewart: But you were a pretty low-level guy?

Yoo: Yeah, but what I'm saying is that on 9/11, I was one of the few people with a background in national security, that had heard about military commissions or the Foreign Intelligence Surveillance Act [FISA] —

Stewart: So you were elevated at that moment; they said, John, you've written about this, come in here. Are you a good lawyer?

Yoo: Do you mean, did Bush ask me that?

Stewart: No, just in general. Are you considered a good lawyer?

Yoo: Well, usually they say, "The people who can't do, teach."

Stewart: Right. But the reason I bring it up is, I read the briefs that you wrote on torture — and, by the way, I didn't finish the whole thing, so don't tell me how it ends —

Yoo: Not well for anyone.

Stewart: But it seems like, in your position there, it seems like they came to you and said, "We would like to be able to increase our interrogation capacity; can we do that?" And you were tasked with letting them do that.

Yoo: Remember the time we were in: this was about one year after 9/11.

Stewart: When was this again?

Yoo: It was that time we're never supposed to forget. [reference to earlier segment of the show]

Stewart: Right.

Yoo: It was that, right after 9/11, and this is not a decision that I would ever wish on anyone to make — not this administration or the last one — and we amazingly captured the #3 guy in Al Qaeda, which is an enormous coup. It's as if Al Qaeda had captured Donald Rumsfeld or Condoleezza Rice, which sometimes people on this show seem to wish had happened.

Yoo: They came to the Justice Department — the CIA and the White House — and said, "What are the legal limits of what we're allowed to do in interrogation?" and I said, It's not something that anyone wants to go out and answer, it wasn't anything that I went into the government to do, but at the same time, our government, our country, is under attack. People at the time think that there is going to be a terrorist attack very shortly, and so there's a huge demand to get this kind of intelligence from this top leader of Al Qaeda.

Stewart: But you believe that the reasoning behind it was sound and that we should still be occupying that same place in interrogative practice, now, 8 years after. It's not — you didn't make those decisions based on its proximity to 9/11, you made it based on what you thought was law that knows no event, just Rule of Law.

Yoo: Well, no, the one difference is that you have to be at war. If we're at peace and there's no enemy, then these are not questions we have to think about, these are not rules or questions that ever come up.

Stewart: So, it has to be when you're at war, this is now, but not what you call total war. You have to be at war to be able to waterboard.

Yoo: You just have to be at war to even think of the question, because the President is the Commander in Chief, and those Constitutional powers — described in the book — only comes up during war.

Stewart: Can the President decide we're at war?

Yoo: He can, although Congress can check him. That's another thing I try to explain in the book, is that it's very easy to attack Bush or Obama for being some renegade President, but Congress and the Supreme Court can always put a stop to anything they want to do —

Stewart: — if they know about it. Do they have to know about it? Can the President keep it secret?

Yoo: You know, all they have to do, actually — all Congress has to do is, do nothing. Right? Because they have to fund and approve all these activities, and, as you know, they were all briefed on a lot of these activities —

Stewart: That's a political issue more than a legal issue.

Yoo: No, no, it's a Constitutional issue, because —

Stewart: No, no, I understand. But I guess what I'm trying to get at is, in the brief, everything that you came up with went in the direction of us being able to do more things — the President having more power —

Yoo: Yes.

Stewart: — and it strikes me as odd, because the lawyers that I have traditionally dealt with, try and give you arguments for and against. And it strikes me as — maybe not unique to the Bush Administration, but all the arguments for them come as justifications for what they want to do, not complex, "Well, there's a precedent here that you can use, things that cause 'severe injury,' but the truth is, settled law is you cannot."

Yoo: Well, first thing, let me say, there were no legal precedents or practices ever before this. The question had never come up before.

Stewart: That's not true.

Yoo: I couldn't say, "Look, here are the things that have been decided by courts before about this."

Stewart: Wait a minute, let me step in very quickly. We signed a treaty banning torture, so the question had come up, and we had answered it by saying, "Yeah, we're not gonna do that."

Yoo: The question is, what does the treaty mean? Right, so it wasn't that we were saying —

Stewart: You're saying that when we signed the treaty, it had not come up what it meant; we just signed it.

Yoo: Right, we signed it —

Stewart: We signed that, and maybe some car leasing agreements.

Yoo: I bet you spend more time on your car leasing agreements than on treaties.

Stewart: So, you're saying that, as a country, we had never addressed the question of whether or not we were allowed to torture enemy combatants.

Yoo: No, no, let me be clear: it was the question of what is and isn't torture. We had not ever come up with that, up against that question, as a government.

Stewart: It sounds like, though, what you are saying is, we had never come up with an answer that was sufficient for the Bush Administration.

Yoo: No, no, no, no, not at all.

Stewart: You're suggesting that we had never addressed what torture was.

Yoo: We had not addressed, what is interrogation methods that are short of torture.

Stewart: We prosecuted people for torture during war.

Yoo: I am saying that we had not faced the question of, what interrogation methods do not constitute torture, but go beyond the regular law enforcement methods that we have used in the past.

Stewart: Well, how did we, then, conduct trials for people that had tortured Americans?

Yoo: Because all those cases were ones where what those other governments had done to our soldiers were well beyond the line of what anyone would think were torture. I mean, everyone would agree that things that happened in those other cases in the past, violate the treaty or the statute. The question is a little different, which is, you don't want to violate the ban, but you don't want to say to the #3 guy in Al Qaeda, "You get a lawyer, and you have your Miranda rights, and you have the right to remain silent."

Stewart: Were those the choices, though? Were those the only two choices we had? We had "Miranda rights" or "waterboarding"? We had not allowed any —

Yoo: What's in between, is the question. Now, to me, in my mind, the question is —

Stewart: You're saying that we as a country had not addressed that very issue until they asked you, a year out of 9/11, to figure out what constituted torture?

Yoo: What lies in that area between —

Stewart:How much can we torture?

Yoo: No, no, I'm saying, how much can we interrogate people and not violate the ban on torture?

Stewart: But in your — we're gonna take a commercial break and I'm gonna put my head in ice water [audience laughs] because this makes no sense to me. We're gonna come back with more from former Deputy Assistant Attorney General John Yoo.

Stewart: We're talking with former Deputy Assistant Attorney General John Yoo, and we were talking about defining torture, and we had never been asked to define it in the sense of developing things that we could do that would not be torture, but would approach — but would be more uncomfortable than talking.

Stewart: So you, the legal scholar, had to come up with, "You can hit them three times with an open hand, but you have to be smiling." [audience laughs] Was that your task?

Yoo: That is kind of what this is like.

Stewart: I know. Isn't it crazy?

Yoo: I'll tell you everything you want to know.

Stewart: I never signed a treaty. But that's what I'm trying to figure out, because there's two issues here. I guess the first is the legal justification. This book, Crisis and Command, basically says, from George Washington on up, the Framers wanted the executive to have immense power in wartime, and that, when the Commander in Chief makes an executive decision, based on national security, he has enormous leeway. Is that correct?

Yoo: Right. And that this comes and goes, so that in periods of peacetime, the Presidency should become a smaller office, and that the Congress and the Supreme Court check it — but the more important thing is that our greatest Presidents are the ones, like Lincoln, FDR, and Washington himself, who did exactly that, and that our worst Presidents were people who kind of shrunk into a shell when they were confronted by great crises and deferred to Congress or the courts.

Yoo: But the Constitutional root of the Emancipation Proclamation was President Lincoln's powers as Commander in Chief in wartime. A lot of people at the time thought it was unconstitutional to free the slaves.

Stewart: But isn't that a moot point? Basically what it's saying is, the President can do what he wants. He either does a great thing or a ridiculous thing.

Yoo: Yeah, but —

Stewart: But he's allowed to do it.

Yoo: It's built into our Constitution that he has that power. That doesn't guarantee that the President's gonna make the right decision or a just decision.

Stewart: So why bother coming up with a variety of interrogations that step up to the line, if the President feels it's necessary, why can't he just say, "Do whatever you gotta do to keep us safe"? Why all the ministration about, we were "finely tuning" it to fit with treaties we already had, when you're clearly saying, "If the President says we're breaking the treaty, we're breaking the treaty"?

Yoo: Right. But also it's the President — first of all, that's the question he wanted to ask us. We're his lawyers; you know, the Justice Department gives advice to the White House.

Stewart: He says to you, "What can I do, and can't I do anything because it's wartime and I'm the President?"

Yoo: Yeah. First of all, let me say, I never had this conversation with President Bush. I never met the man.

Stewart: That may be the most fucked-up thing I've heard about this. You never had a conversation with the Commander in Chief. You were tasked with coming up with a policy that pushed us over what many people are comfortable with, in terms of our treatment of enemy combatants, and you never sat in a room with him??

Yoo: No, I've never met him. First of all, I don't think the majority of the American people actually think we went too far, but, you know, who knows, there's polls out on that. [audience murmurs]

Stewart: [shushes audience]

Yoo: Okay, a majority in your audience.

Stewart: By the way, the entire audience tonight is made out of hemp. [audience laughs] No, I think that —

Yoo: I guess they're just like the ones in Berkeley, then.

Stewart: I'm somewhat confused, then, because you make it sound like a "no-brainer."

Yoo: No, no.

Stewart: In wartime, you're allowed to do what you're allowed to do, because you're the Commander in Chief.

Yoo: Apparently these are very hard questions, because it has to be something that's necessary and proportional to win. I mean, the President can't just say, "Oh, it's wartime, I can do anything," like, Richard Nixon can't say, "It's wartime, so I can wiretap the Democratic Party."

Stewart: Why not?

Yoo: Because there's still — the Constitutional power, he's Commander in Chief in charge of a war —

Stewart: Is he allowed to electrocute someone's testicles?

Yoo: No, I don't think so.

Stewart: So, he's not allowed to —

Yoo: That's not necessary. It's not.

Stewart: Why isn't it necessary?

Yoo: You know —

Stewart: What if they don't break using the "Enhanced Interrogation Techniques"?

Yoo: Look, I think all these sort of parade of horribles you could have about whether this is torture, is that torture — anybody can come up with all kinds of things. I don't think any of that is necessary to the objective of getting these guys to talk. The President is still —

Stewart: But that's not the point. He could if he wanted to.

Yoo: No, no, no, because I think his power is still limited as Commander in Chief to doing those things that are necessary to win the war — and that's what I describe in the book is, here are all these Presidents who are faced with a Civil War, with the Revolution: they had to take these hard choices, tragic choices about what to do. They tried to do only what's necessary. They're fairly modest when they exercise the power, even though, as you said, it's an expansive and great power, but we want people in the job who are going to exercise it only as far as is necessary to win.

Stewart: Do you understand, the confusion that I'm having is, what you're saying is, the President has to decide how far he can go up the line for what is necessary to win, when he doesn't know what is necessary to win, because we haven't defined the war. Part of the issue here is, the Bush Administration seemed to want to exist in this netherworld of accountability, to say we're at war when it serves their purpose of executive prerogative, but not to say we're at war when that would invoke the Geneva Conventions. To say we're at war when they're allowed to do what they want to do, but then to say, "Well, it's a different kind of war," when that would bring in Congressional and Legislative checks.

Yoo: That's exactly the kind of question that I talk about here [in the book]. That's why I look at the previous Presidents: because they —

Stewart: The answer is, didn't you solve every one of those questions with "more power for the President"?

Yoo: I'm afraid to say, just like the lawyers and attorneys general to Lincoln and FDR did in their day. Right? Look at World War II. Before World War II, FDR violated statutes written by Congress to get us into the war early, to help the Allies. We waged undeclared war with the Germans.

Stewart: I think that's a very selective reading, though, of Presidential prerogative, and, you know, I don't think people would look at the internment of the Japanese as a smart exercise of Presidential prerogative. Our neutrality was a slightly different level, and certainly not at the level of whether or not we can —

Yoo: I agree. I say right up front, you know, FDR made a mistake, Lincoln made mistakes.

Stewart: So, did Bush make a mistake in pursuing, perhaps, inhumane treatment of combatants that, if our soldiers were treated similarly, we would be outraged?

Yoo: Look, I don't think that they made a mistake in deciding to go beyond the law-enforcement paradigm, because it was an unconventional, unprecedented type of war. You're quite right to say, oh, there's —

Stewart: How is terrorism unprecedented?

Yoo: Because we were attacked for the first time by a non-state group.

Stewart: In the 1930's, we had anarchists bomb government buildings.

Yoo: They didn't blow up and kill 3,000 people in New York City, either. They didn't destroy the World Trade Center and try to decapitate the government, either.

Stewart: What?? So, it's all based on how many? So, if you kill a hundred people, can you torture?

Yoo: No, no, this is a question, again, talked about in the book — what is "war"?

Stewart: How frustrating is it to talk to me, because I'm approaching it from — I'm trying to follow a logic, and I guess you're following a legal paradigm? Because I'm not understanding why it's unprecedented. Terrorism has been around as long as people have been around. Guy Fawkes tried to blow up Parliament. We all came to the conclusion that we would not treat prisoners inhumanely. We decided to abandon that, because this was a different type of war. I am not understanding why yet.

Yoo: You don't understand why it was a different type of war?

Stewart: Why we would abandon principles that we have always had in place for this particular —

Yoo: Because — first of all, let me say, I don't find talking to you frustrating. I find it many things, but not frustrating.

Stewart: I want you to know that this is true curiosity on my part. I am struggling with logic here, in my own mind. I don't understand how the government can say, "We only did this to save lives." Well, if you only — if that's the way you save lives, why did we stop doing it in 2004? See, "This is how we save lives" and why don't we do it to criminals? Why don't we do it to domestic people, and why don't we do it to teenagers, because sometimes kids go into schools with guns? Why don't we do it to everybody to save every life?

Yoo: First of all, these are very good questions. [audience applause]

Stewart: Let me — [rolls his chair back and forth]

Yoo: What were you doing just there?

Stewart: I'm getting a cramp. I'm just so not understanding this.

Yoo: Let me explain. So, first of all — and this does go to the heart of the book — the reason the Presidency even exists at all — you could've had no President in the Constitution. The reason it exists is because the Founders wanted to have part of the government that could respond quickly and effectively to something that isn't foreseen, something that is unprecedented. If Congress — you know, that great deliberative body — could anticipate everything that's going to happen in the future, they could write the laws that way; you would never have — you would never need a President. So, the 9/11 attacks are unprecedented for this reason: they are like an attack that a nation-state would wage against us, but it's not a nation-state. If the Soviets had attacked us in 2001, exactly the same way, no one would doubt that that was an act of war, right? If the Soviets had — you know, if Gorbachev had flown on a plane and blown it up, or flown it into the Capitol, everyone would say, "Oh, we're at war with the Soviet Union." The thing that makes it different and confusing — and it's not that you're confused, it's a tough question, and half the country thinks one thing, half the country thinks another thing — is that our opponent is a non-nation-state. And the reason that makes it hard is that there's no armies to find, there's no territory to capture; the only way we can win is by getting intelligence to stop them from launching the next attack. So, it's very hard for us as Americans — you know, we're used to having these conventional wars where we see the front moving closer and closer to Berlin. That's not gonna happen in this conflict.

Stewart: But you make a lot of assumptions in what you said, and just starting at the beginning: the first is that the Framers created the Executive so that it could be more nimble and wanted to invest it with more power than the Legislative body in times of war. I think that's — you know, you could pick out certain things that some Framers said and others that others said and make that case. The second thing is that the only way to ensure that this would be the best solution to our security problem would be these Enhanced Interrogation situations that we put ourselves in, in a new and unprecedented kind of war. You know, the same executive prerogative that got you to write those memos, got us involved in Iraq.

Yoo: Right, mm-hmm.

Stewart: And so, if the idea is — you could make the case that pulling our troops out of Afghanistan and putting them into Iraq, taking over countries where we feel the régime has failed, and then holding that country with our military —

Yoo: This is the hardest question — I mean, this is the hardest question, and I try to grapple with it at the end. This Presidential power can be used for bad reasons, too, and people can do stupid, dumb things.

Stewart: Did President Bush, in your mind, use his Presidential power for negative purposes, as well, in terms of fighting it effectively? And what would you say were wrong? And what is our recourse to that?

Yoo: Well, first of all, I'm not a strategist. I never was sure about the Iraq War, whether as a matter of strategy — or strategery — it was the right thing to do. [audience laughs]

Yoo: Actually, we left a space on the back of the book for you, to put that right —

Stewart: No! That's not going on your blurb. But go ahead.

Yoo: So — actually, I completely lost my train of thought.

Stewart: You were saying —

Yoo: As a matter of policy, I don't know whether the Iraq War was the right thing to do, versus Afghanistan; maybe we should've won Afghanistan first and then devoted our resources to Iraq. I don't know. The Constitution doesn't prevent people from making poor decisions. Right? As you say, the same power that gave Lincoln the power to do the Emancipation Proclamation, Nixon claimed the same power when he wiretapped people illegally.

Stewart: Do you see the danger of, when someone suggests that we are in a netherworld between a total war, a real war, and a new kind of war? Because what that says is that Presidential prerogative will never end. I mean, you could make the same argument in the Cold War. We're in a Cold War; therefore, the President — you know, it places so much power within the Executive to decide what is in national security interests, that I don't see how this is feasible within the framing of the Constitution. The Constitution is explicit in war powers, and I'm surprised to see a conservative make that argument, because it's so not originalist. It's saying that, whatever the situation is, the Framers couldn't really anticipate, so they left it up to the President to decide at what point the nation was safe and he could go back to no longer being a king. It just seems shocking to hear a conservative lawyer espouse that theory.

Yoo: So, now you're insulting me.

Stewart: How did I — wait! Where?

Yoo: I'm just kidding.

Stewart: Oh. [audience laughs] I'm not.

Yoo: I take away the word now.

Stewart: [laughs]

Yoo: So, the main point is this: you're right — I do think the Constitution has this element in it, through the Presidency, to adapt to current circumstances, is not just originalist. You know, we don't look at what the President did in 1789 to figure out how to handle terrorism now. I mean, I agree that would be foolish. I guess my final bottom line on this — and I've struggled with it throughout Crisis and Command — was that, in the end, it is still good for us to have the President able to make those good decisions, even at the cost of sometimes having Presidents who make the bad ones. It's worth it to our system to be able to have a Lincoln or an FDR, even if the price is to have someone like a Nixon. Or, in your mind, Bush, or, in Republican minds, Obama. Right? I think that's part of the price we have to have in our system in order to be able to respond quickly to terrible challenges to the country.

Stewart: Okay.

Yoo: There's no perfect system, though.

Stewart: Okay. Well, I appreciate your being here, and I am very angry at you that you caused me to read a lot of legal documents over the past two days, and I have now been practicing these arguments, as they're arguing in the Senate over Star Wars. You know, I'm trying to read this while my son is watching Phantom Menace — my mind is blown, quite frankly. [audience laughs] But I do appreciate — one of the things I want to mention is we — I always like to think that it's very easy to demonize people and actions, and I think it's important that you sit in front of them and have as honest a discussion and as real a discussion as you can — not that informed a discussion, because I do feel not very equipped, historically especially, to handle the discussion, but I hope that people take away from it at least a certain human struggle that everybody faces in these difficult situations to do what they think is best for the country, whether there are disagreements or not, and not to demonize those actions, on one side or the other, because that is way too easy these days, and I don't hate Bush, you, the things that were done. I disagree with certain things, and I appreciate you coming by to discuss them, and I hope some day you get a chance to write humane briefs. [audience laughs] Thank you for coming on the show. Choices and Command is on the bookshelves now; John Yoo!